Parliament and democracy in the 21st century: parliamentary privilege.

• Author: Reynolds, Robert

Definitions of parliamentary privilege abound throughout the Commonwealth but drawing largely from Joseph Maingot, a bored Canadian author on the subject, privilege can be described as the necessary immunity the law provides for Members of a House of Parliament or Assembly to perform their work and the authority of those Houses and Assemblies to enforce that immunity and protect their integrity. It also covers the rights enjoyed by each House of Parliament and Assembly required to perform their work. Members, officers and those participating in a proceeding of a House or Assembly are "cloaked" by privilege. Any offence against the authority of a House of Assembly is technically considered a contempt. Parliamentary privilege is often subject to modern and changing circumstances as the categories of privilege were fixed in the very early 18th century.

The attempt to make the definition comprehensive renders it dry. This is unfortunately because, in my view, the historic rationale for parliamentary privilege is as relevant today as it was centuries ago -- to allow Houses and their Members to conduct their business according to the rules they set, free from undue interference from those outside the House. The law of parliamentary privilege protects and promotes core values in our democratic system by protecting Houses of Parliament, Assemblies and those who serve in them

This year marks the 10th anniversary of an important milestone in the recognition of parliamentary privilege. On January 21, 1993 the Supreme Court of Canada released its decision in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker, House of Assembly). Parliamentarians often refer to this as Donahoe after Arthur Donahoe the then Speaker of the Nova Scotia Assembly. In Donahoe the majority of the Supreme Court of Canada held that an Assembly's inherent parliamentary privileges enjoy constitutional status and cannot be "trumped" by another part of the Constitution, specifically, the Canadian Charter of Rights and Freedoms.

The issue in Donahoe was whether television camera operators had the "right" under the Charter to film the proceedings of the Assembly or whether the Assembly had the right to exclude them from the galleries. The majority of the Supreme Court held that Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning and that such privileges, although not part of the written Constitution, are part of the...